The Sensibilities of Our Forefathers

The History of Sodomy Laws in the United States

Oregon

"[He] immediately began to talk to them about
"queans" the significance of which Van Hulen understood."

The Post-Revolution Period, 1776-1873

Upon settlement, Oregon was overwhelmingly male and "infamous means of
satisfying the long denied passions of the seafarer were sought and
supplied" in the city of Portland.1 The

comparative absence of women stimulated grossness and coarseness of
speech and manners, and the temptation toward immorality was greatly
intensified.2

The first white settlers adopted what they called the "Blue Book"
in 1843, the first set of laws in Oregon, even though Oregon was not, at that
time, a legal entity. What came out of this code in terms of the criminal law
is something of a puzzle. All criminal laws of Iowa as adopted in that states
code of 1838 were adopted, as were "the principles of common law and
equity" in matters where no Iowa statute governed.3
The Iowa code made no mention of sodomy but adopted all criminal laws of
Wisconsin, which included sodomy. This action adopted, in a most indirect
fashion, sodomy as a crime in Oregon. The reference to "the principles of
common law and equity" is unclear as to whether criminal, civil, or both
branches of the common law were adopted.

It is unfortunate that Oregon chose the original Iowa code to adopt,
because Iowa adopted another code in 1840 that abrogated all Wisconsin laws
and did not refer to sodomy or common-law crimes. This legalized sodomy in
Iowa and would have in Oregon.

In 1844, a new law4 retained the adoption of
the original Iowa code and reworded the common-law provision to a more clear
"common law of England and principles of equity," thus apparently
adopting both the criminal and civil branches of the common law. This code was
put to a vote in the thinly populated Oregon country and, by a margin of 255
to 52 (83%-17%), the voters approved it over the previous, more vague law.5

The first Iowa code, with its adoption of the laws of Wisconsin, again was
reaffirmed in a law of 1845.6

The Organic Law for the Oregon Territory in 18487
made no reference to common-law crimes or sodomy but retained all existing
laws.

The criminal code of 1850, the first of Oregons own, made no mention of
either sodomy or common-law crimes, thus legalizing sodomy in the state.8

However, in 1853, the Territorial legislature passed a new criminal code9
that abrogated common-law crimes10 and
contained a sodomy provision with the common-law definition and a penalty of
1-5 years in the penitentiary.11

In 1873, the Oregon Supreme Court decided in State v. Vowels12
that "courts have no right to assume jurisdiction of common-law offenses
not included in our Criminal Code."13

Period Summary: Oregon showed much of the pioneering spirit with
its early criminal law. The Blue Book, a code of law adopted in 1843,
adopted the original laws of the Iowa Territory verbatim. The Iowa code,
although not mentioning sodomy as a crime, itself had adopted all the laws
of Wisconsin, which did outlaw sodomy. Thus, in a roundabout way, sodomy
was made illegal in Oregon. The irony is that, just a few months before
the Blue Book was enacted, Iowa adopted its own code and made no mention
of sodomy. Since Oregon adopted the original Iowa laws, it was left with a
sodomy law that Iowa cast off. Early reports in Oregon show an all-male or
nearly all-male population, leading to much "temptation toward
immorality." Whether this was seen as a major problem in the
Territory is unclear. A code of law adopted in 1850 deleted reference to
sodomy, although a new sodomy law was enacted three years later that would
endure, in one form or another, for more than a century.

The Victorian Morality Period, 1873-1948

I. Sodomy

In 1894, a newspaper story told that a neighbor reported a male couple to
police and one partner was convicted of sodomy as a result.14

Governor Oswald West, who was responsible for launching a crusade against
vice in 1912, urged the Oregon legislature to "investigate this subject
[degeneracy]."15

Rather than an investigation, the legislature responded with new laws in
1913, including a unique statute16 that
reworded the sodomy prohibition as follows.

If any person shall commit sodomy or the crime against nature, or any
act or practice of sexual perversity, either with mankind or beast, or
sustain osculatory relations with the private parts of any man, woman or
child, or permit such relations to be sustained with his or her private
parts, such person shall upon conviction thereof, be punished by
imprisonment in the penitentiary not less than one year nor more than
fifteen years.17

In addition to the incredible breadth of the statute that obviously covered
practically any kind of erotic activity, the maximum penalty was tripled.
(Another 1913 law was the sterilization statute; see the Sterilization
section.) This new sodomy law turned out to be unneeded, however. Just a few
months later, the Oregon Supreme Court issued decisions that, even without the
law, would have rendered fellatio illegal.

In 1913, in State v. Start,18 the
Court decided that fellatio was a "crime against nature." The Court
defined the act of fellatio by Start with partner Fred Rodby for which the
defendant was convicted as "taking into his mouth the penis of Rodby and
sucking the same until a seminal emission ensued."19
After giving an anatomical lecture concerning the two openings of the
alimentary canal, the Court could not understand why ancient writers did not
recognize fellatio as an act of sodomy. "The moral filthiness and
iniquity against which the statute is aimed is the same in both cases [anal
and oral sex]."20 Witnesses Fred Rodby and
Earl Van Hulen on a street in Portland and Rodby asked Van Hulen to accompany
him to an office to meet Harry Start. Upon entering the office, Start closed
and locked the door and

immediately began to talk to them about "queans" the
significance of which Van Hulen understood. This conversation led up to
the act charged in the indictment. He remained seated in the room and
watched the performance of the act, testifying substantially that he
stayed there because he thought it was better than to go out, and for the
reason that if he opened the door and left the room he would be liable to
disclose what was going on inside; that he told the defendant he thought
it was very daring, and that it was bad enough for two without three in
the room.21

The Court nevertheless voted 3-2 to overturn Starts conviction because
of the admission of testimony of other males who said that Start engaged in
similar acts in the same office with them.22 In
dissent, Chief Justice Thomas McBride acknowledged that the crime "is
unusual and unnatural, as its name indicates" and "we are dealing
with an offense not usually committed, and rarely committed in the manner
described in the testimony."23 McBride
also felt that the "mentally normal man is as incapable of committing it
as the physically normal man is incapable of carrying away a rail from a
railway track."24 McBride felt that the
other acts should be admissible because they tended to show a pattern of
behavior.25

The companion case, State v. Wedemeyer,26
was disposed of by the same 3-2 vote on the Start precedent.

Starts attorney demanded that charges against Start be dismissed and
threatened to seek habeas corpus relief from the Oregon Supreme Court
unless that was done.27

Judge W.N. Gatens dismissed charges against a number of sodomy arrestees
because the state was attempting to prosecute them under the new 1913 law for
activity that occurred the previous year, a clear violation of the ex post
facto provision of the Constitution. Among those freed were both Harry
Start and Edward Wedemeyer.28 Start was
permitted to leave the country and never was retried.29

Attorney E.S.J. McAllister was as lucky as Start and Wedemeyer. In State
v. McAllister,30 a now-expanded Oregon
Supreme Court divided 4-3 to overturn the conviction because of a trial error.
The majority opinion mentioned that the trial judge

told the jury that he thought a man with normal sexual instincts was
not capable of committing the crime charged, and that only a person
of abnormal sexual sense is capable of committing such an offense.
The court then added that if the jury were satisfied that one was
possessed of this unnatural or abnormal sexual sense, they might infer
that he had a motive, a reason, or a force impelling him to do such an
act. The court practically assumed the position of an expert witness,
and gave the jury his opinion concerning the kind of person who
could and the kind of one who could not commit the crime
against nature. This was prejudicial error. [Emphasis was the Courts].31

The dissent was written by Justice Charles McNary. He wrote that Harry Work
met Roy Kadel on a street in Portland and asked him to accompany him to
McAllisters office. Kadel entered the office and Work waited outside. Upon
becoming impatient, Work knocked on the door, opened it and saw

Kadel wiping his penis with a handkerchief; that Work ejaculated,
"Hello, what is this?" and Kadel replied, "McAllister and I
are having a little trade," which, in the parlance of the morally
depraved, means the performance of the act defined in the indictment[.]32

McNary also found significant a post card mailed from McAllister to Kadel
before the above act occurred.

"Dear Roy: I send you this as a mark of my appreciation of your
frequent calls. [Signed] McAllister."

"The language employed by defendant in this message to Kadel indicates
most strikingly the cordial relations existing between them, and manifests
defendants appreciation of Kadels frequent calls, which were for an
illicit purpose."33 McNary also claimed
that "the defendants dealings with Kadel were not prompted by natural
affection; that defendant courted Kadels friendship for the purpose of
satisfying a lustful and unnatural passion."34
People did not commit crimes unless "a motive sufficient to break down
the barriers that nature has set up in opposition thereto" occurred. One
of these barriers

is a controlled and natural sex instinct for the opposite gender, and
when men are accused of a crime involving a perverted or inverted sex
instinct, it becomes important to seek the motive that impelled the act.
Confessedly no man would commit this unnatural act unless his motive be to
satisfy a perverted sexual passion[.]35

Even though McNary felt that "[n]o fact is better understood to modern
medical science than that sodomy and its allied vicious concomitants are never
committed except by persons impelled by a perverted and diseased mind,"
he voted to uphold the conviction.36

The next reported sodomy case was State v. Kapsales,37
decided in 1918. The Oregon Supreme Court upheld the conviction of a Greek
immigrant after the prosecuting attorney

further referred to the glories of past Greece and her present
condition, and inferred [sic] that a decline in morals was
responsible therefor, and this is complained of as prejudicial.38

In 1926, in State v. Harvey,39 the
Oregon Supreme Court upheld the right of the state to prosecute individuals
for attempts to commit sodomy under the general attempts statute.40

The breadth of the sodomy statute was put to a test with the next case, State
v. Brazell,41 decided in 1928. The Oregon
Supreme Court upheld a conviction under the law for the consensual
masturbation of another person.42

In 1944, the Oregon Supreme Court decided the case of State v. Ewing.43
The Court rejected the contention of defendant Ewing that the indictment
charging him with sodomy, sex perversion, and osculatory relations charged
three distinct crimes. The Court was confident that these three terms still
charged only one act.44 The Court also
prohibited the introduction of other alleged acts between the defendant and
prosecuting witness,45 but permitted the
introduction of such evidence between the defendant and other witnesses.46
The Court also specifically barred the introduction of evidence of the
defendants supposed "bad character," unless the defendant had
himself "put his character clearly and expressly in issue."47
Because of these errors, the conviction was overturned and a new trial was
ordered.48

II. Sterilization

No other state in the nation has so rich a detailed history concerning
sterilization of Gay men and Lesbians as Oregon.

In 1904, a Northwest physician, Bethinia Owens-Adair began her personal
crusade for sterilization laws throughout the United States. She wanted to
include "those loathsome victims of an unnamable [sic]
vice[.]"49

The first bill to be introduced into the Oregon legislature concerning
sterilization was in 1907. It would have covered "criminal
degenerates" as well as others.50 It was
not enacted.

A bill to require the sterilization of all "confirmed criminals,"
as well as others, passed the legislature in 1909, but was vetoed by Governor
George Chamberlain. The definition of "confirmed criminals" was
those convicted of a third felony, of which sodomy was one.51
Chamberlain, in his veto message, raised some technical objections, but also
said that he did not believe that "all" of those mentioned in the
law "ought to be subjected to such harsh treatment."52
He did not specify which of the covered classes should be so subjected and
which should not.

A second attempt at a sterilization law, in 1913, met with curious defeat.
A bill to authorize sterilization only of "habitual criminals,
moral degenerates, and sexual perverts" confined in state institutions
passed the legislature53 and was signed by
Governor Oswald West, who had instigated the infamous anti-vice crusade in
Portland. "Moral degenerates and sexual perverts" were defined as

those who are addicted to the practice of sodomy or the crime against
nature, or to other gross, bestial and perverted sexual habits and
practices prohibited by statute.54

This law was the subject of what probably was the first Gay rights
referendum in the nation. The Anti-Sterilization League, headquartered in
Portland, and the only known group in the United States with organized
opposition to sterilization, succeeded in forcing a referendum on the law.55
The measure facing voters clearly had the words "habitual criminals,
moral degenerates and sexual perverts" written on the ballot, so no
confusion existed as to what the issue was about. It was labeled "A
Measure to protect the public peace, health and safety from habitual
criminals, moral degenerates and sexual perverts[.]"56
The measure lost by a solid 56%-44% vote statewide, carrying only four of 34
counties.57

Ignoring the command of the voters, the Oregon legislature enacted an even
broader sterilization law in 191758 that
included all

feeble minded, insane, epileptic, habitual criminals, moral degenerates
and sexual perverts, who are persons potential to producing offspring who,
because of inheritance of inferior or antisocial traits, would probably
become a social menace, or a ward of the State.59

Another section of the law stated that the definition to be used for these
"moral degenerates and sexual perverts" was

those who are addicted to the practice of sodomy or the crime against
nature, or to other gross, bestial and perverted sexual habits and
practices prohibited by statute.60

This law created an obvious contradiction. Those persons who had potential
to produce offspring could be sterilized, but the definition of some of those
persons was one that precluded reproduction. The definition also did not
require that anyone actually be convicted of violating the sodomy law in order
to trigger the procedure.

Correspondence from one institution, the State Hospital in Salem, reveals
that, through the end of 1917, 16 inmates12 male and 4 femalewere
sterilized, all of them via the radical procedure of castration or ovariotomy.
All were "flagrant masturbators or sex perverts."61

A suit filed in 1918 by two prisoners, one of them convicted of sodomy,
tried to have the law invalidated.62 The suit
never proceeded because the sodomy prisoner, Tony LaGallo, succeeded in
convincing the state not to castrate him. The other prisoner, Herbert Merithew,
withdrew his objection and allowed the state to castrate him.

In 1920, a prisoner who had been convicted of sodomy, Fred Burr, was
paroled after being castrated. He had been sentenced to 1-15 years for his
crime and, due to his castration, served less than two years.63

In an unreported decision from 1921, Cline v. Oregon State Board of
Eugenics, the sterilization law of 1917 was ruled unconstitutional. The
decision was exactly 42 words long.

IT IS ORDERED that said demurrer of said Jacob Cline to said
proceedings of said State Board of Eugenics be and the same is hereby
sustained;

AND IT IS HEREBY FURTHER ORDERED that this proceeding be and the same
is hereby dismissed.64

Under this unconstitutional law, Oregon had performed 127 sterilizations,
on 68 males and 59 females. Two of the males (3%) and 40 of the females (68%)
had received the lesser surgery of vasectomy or salpingectomy. Sixty-six males
(97%) and 19 females (32%) had been subjected to the more radical procedure of
castration or ovariotomy.65 The 66 castrations
in Oregon amounted to 92% of the total of 72 in the United States under the
sterilization laws between 1907 and 1921. (There were 1,781 vasectomies during
the same time.) The 19 ovariotomies were 19% of the 100 performed throughout
the United States in the same years. (There were 1,280 salpingectomies during
the same years.)66

The enthusiasm with which the Oregon sterilization law was met by state
officials led to no fewer than 15 written opinions by the Attorney General.
Ten of them are mentioned here because of the impact that they had on Gay men
and Lesbians.67

The first opinion of the Attorney General on the issue of sterilization was
issued in 1922.68 Oddly, the opinion was issued
just a month after the law was found unconstitutional. Attorney General I.H.
Van Winkle interpreted the law to be limited to cases in which

it is the consensus of opinion by such medical experts as are available
that the operation would be of certain benefit to the patient. It should
be considered a benefit to the individual upon which [sic] it is
performed, and not only a benefit to the community at large and this view
should be kept in mind in deciding whether or not the operation should be
performed.69

A "complete" report70 from the
Oregon Penitentiary of sterilizations performed therein on male prisoners,
issued in 1922, revealed that, prior to the Cline decision, eight men
were sterilized (the method used was not discussed) and four of them, or 50%,
were for same-sex activity. Moreover, five others were on a "waiting
list" to be sterilized at the time that Cline was decided. All
five were for same-sex sexual activity.

A new sterilization law was enacted in 1923.71
The apparent contradiction between reproduction and addiction to sodomy was
noted and the definition of those eligible for sterilization was expanded to
eliminate any need for the person to show reproduction potential. Instead,
these same "moral degenerates and sexual perverts" needed only to be
a possible "menace to society."72 The
definition of these degenerates and perverts was eliminated, presumably
allowing an even broader interpretation by state officials.73

The Attorney General issued another opinion in 1924.74
Attorney General I.H. Van Winkle cautioned the Board of Eugenics that the law
required that persons they proposed to sterilize be given an adversary
hearing, with an opportunity to defend themselves. Chiding the
overenthusiastic officials, Van Winkle said that it

would hardly appear possible for the said board to reach an intelligent
conclusion with reference to the person under examination, unless such
person appears before the board for examination.75

The law was broadened again in 1925.76 This
law required the names of anyone convicted of sodomy or any other
provision of the states broadly worded sodomy law to be forwarded to the
State Board of Eugenics.77 The Board then
presumably could order the person sterilized, if so inclined.

In an opinion from 1926,78 Attorney General
Van Winkle cautioned the State Board of Eugenics that it probably was in
violation of state law in the referral of two prisoners, for an unspecified
reason, to them. The referral came from the warden of the penitentiary and had
not been verified.79

A medical journal in 1927 revealed the numbers affected at the Oregon State
Hospital under the sterilization law of 1923. Sixty-two men and 101 women had
been sterilized. Of these numbers, 57 men (92%) and 79 women (78%) had been
subjected to the more radical procedure of castration or ovariotomy.80
The journal went on to say that "[n]othing but castration" will do
"the sexual pervert or the chronic masturbator" any good. Courts
should, in the future, make castration a part of the penalty, along with
imprisonment.81

Another opinion of the Attorney General was issued in 1928,82
and it also revealed that some state officials were too eager to sterilize a
state charge. Attorney General Van Winkle informed the superintendent of the
Oregon State Industrial School for Girls that her institution had not been
given authority under any law to refer inmates for sterilization, but offered
a way to get around the law. The superintendent could notify the State Health
Officer, who then could make the referral to the Eugenics Board.83

An amendment to the sterilization law in 192984
extended the authority for referral for sterilization to the Industrial School
for Girls.85

Another opinion by the Attorney General came in 1929.86
This opinion clearly showed the expanding abuse of the law. The Board of
Eugenics asked if it had the authority to decide on its own who was
sufficiently undesirable to order sterilized. Van Winkle checked that power by
noting the restriction placed in the sterilization laws to cover only the
"feeble-minded, insane, epileptics, habitual criminals, moral degenerates
and sexual perverts[.]" Nothing in the opinion explained the undesirable
trait sought to be eliminated that wasnt in this list.87

Through the end of 1934, a total of 957 sterilizations had been performed
in Oregon under the law of 1923 and its progeny.88

The sterilization law was amended in 1935.89
This law copied a few others and required lists to be submitted quarterly to
the Board of Eugenics of all moral degenerates and sexual perverts, whether or
not these people committed a crime.90

In 1941, the Attorney General issued an opinion91
stating that, assuming they followed the law to the letter, sterilizing
physicians could not be held liable for the sterilization.92

Through the end of 1941, the state reported a total of 518 sterilizations
since 1918 (under the 1917 law).93 Included
were 216 men and 302 women. This is at variance with reports in medical
journals and other sources. For example, almost twice this number of
sterilizations was reported to have occurred seven years earlier and in a
shorter time span. The list shows no sterilizations during this time only
during 1922, which means that the state followed the 1921 Cline
decision that the 1917 law was unconstitutional and did not resume
sterilizations until a new statute was enacted in 1923. In the 24-year period
reported, 69% of men had received the more extreme sterilization via
castration, as opposed to only 11% of women receiving the extreme measure of
ovariotomy. In four years, all sterilized men were castrated while none
of the sterilized women was ovariotomized. The report also shows that the
number of sterilizations was at its highest in the years 1934-1939, years
coinciding the Nazi Germanys aggressive use of sterilization.

In 1946, Attorney General George Neuner issued an opinion94
that again applied a brake to the express train the Board of Eugenics tried to
drive across the state. Because the Board met only quarterly and most people
in institutions subject to the law stayed in the institution for only one or
two months, the Board tried to delegate the decision for who should be
sterilized to the superintendent of the institution. Neuner quoted extensively
from the Oregon law and told them that they could not delegate their
authority.95

Just two weeks later, Neuner was called on for another opinion on a very
similar situation.96 The state health officer
asked if he could order a sterilization without going through the Board of
Eugenics. Again, Neuner said "no."97

Period Summary: Oregon had a period of nearly forty years of
official silence on the issue of sodomy. It was not until 1912 that
scandal awoke the state. That year, a group of Gay men in Portland were
arrested for various sexual activity centered around the YMCA. Although
there were a number of convictions, most were overturned on appeal. One
reaction of the state was to adopt a law to authorize sterilization of
"sex perverts" in 1913. The law was subjected to a referendum by
an anti-sterilization group and was repealed by a substantial margin.
Portlands Multnomah County, where the YMCA scandal broke, voted more
heavily against the measure than did the state as a whole. This leads one
to believe that the legislature and courts were not in harmony with
majority thinking in the state. Also in 1913, the sodomy law was broadened
to cover virtually any erotic activity, a convenient catchall that was
enacted when officials learned, through the YMCA scandal, of all the
different ways men could enjoy sex with each other and which were not
outlawed by statute. A sterilization law was enacted a few years later and
it was not attacked on the ballot. The law was utilized with great
enthusiasm by the state, so much so that the Attorney General of Oregon
issued opinions that officials were, in a number of instances, exceeding
the limits of the law by their actions. In 1928, consensual masturbation
of another person was found to be violated by the new sodomy statute,
guaranteeing that there was little or no erotic activity that didnt
remain the states business.

The Kinsey Period, 1948-1986

I. Sodomy

In 1948, in State v. Bauer,98 the
Oregon Supreme Court unanimously overturned a sodomy conviction because the
defendant was convicted of an act different from that specified in the
indictment.99

Portland Mayor Dorothy Lee urged that a five-point program against
"sex deviates" be put on the statewide ballot in 1952.100
The measure never made it to the ballot,101
and Portland voters threw Lee out of office the same year.

The case of State v. McIntyre102 was
decided in 1952. The Oregon Supreme Court unanimously upheld the sodomy
conviction of a man for consensual fellatio with two 16-year-old boys. The
defendant was convicted on the uncorroborated testimony of one of the
teenagers, who were not considered accomplices by the Supreme Court because
the 16-year-old consenting partner was a "mere boy."103

Oregon enacted a "psychopathic offender" law in 1953.104
Sodomy was one of only two triggering offenses for the law, and it applied to
anyone over 16 who got involved with anyone under 15, thereby allowing a
16-year-old to be declared psychopathic for involvement with a 14-year-old.105
Also included in this law was a section adding the applicability of its
provisions to any crime if "the judge of the court finds, or has
reason to believe, that sexual stimulation was the motivating factor" in
its commission.106 This same law permitted a
second conviction for sodomy, even if consensual, to receive a sentence of
life imprisonment.107

In 1955, the psychopathic offender law108
was amended and included a provision that forbade the kidnapping or detention
of a child under 16 for purposes of engaging in sodomy or certain other sexual
crimes. The maximum penalty for this was life. Again, this law covered a
16-year-old involved with a 15-year-old.

An opinion by the Attorney General109 from
1957 interpreted the psychopathic offender law to limit the right to make a
psychopathy determination to the trial judge. A jury would not be able to make
that decision.110

A proposal was made in 1957 to create a "central investigating and
identification bureau dealing with sex deviates." A registry would be
created to maintain "an investigation of known and suspected sex
deviates" to make investigation of sex crimes easier.111
The proposal did not become law.

In the 1960 case of State v. Casson,112
the Oregon Supreme Court, sitting en banc, unanimously upheld the
conviction of, but ordered resentencing of, a Gay man. Robert Casson had given
liquor to a minor male, manipulated his penis, fellated him, then transported
him to the home of Sylvester Hodges who, in the indictment against Casson, was
described as "a promiscuous homosexual [who had] a sexual preference for
adolescent boys."113 The jury returned a
general verdict of guilty, without specifying of which of the four counts, or
combination of them, Casson was considered guilty. Casson then was sentenced
to life imprisonment under the states indeterminate sentencing law. Not all
of the four charges brought against him would trigger the indeterminate
sentencing law, so the Supreme Court believed that the trial court had been
unfair to sentence Casson under it.114 Justice
Alfred Goodwin, writing for the Court, noted also that irrelevant evidence
concerning Sylvester Hodges was allowed to be inserted into Cassons trial,
specifically

the promiscuous and loathsome nature of Hodges conduct in the past
with other similarly afflicted persons, none of whom were before the court
in any capacity except as witnesses to the behavior of the absent Hodges.115

Goodwin noted that, under the indictment as worded,

the jury could have found the defendant guilty solely because he took
the child to the home of a man known by him to be a promiscuous
homosexual. The evidence showed that there followed in fact a casual
association. Although there was no evidence that the association had time
to ripen into an unwholesome one, the evidence was sufficient to support
the verdict.116

Cunnilingus was found to be a violation of the sodomy statute by the Oregon
Supreme Court in the 1961 case of State v. Black.117

In 1963, Oregon revised its psychopathic offender law118
by limiting its applicability to sexual activity with children under the age
of 12.119

A sex scandal in 1963 was nearly as sensationalized as the YMCA scandal of
a half-century earlier.120

In 1965, the Oregon Supreme Court, sitting In Department, decided the case
of State v. Stanley.121 It held that a
complaining witness who was intoxicated at the time of the offense could not
be considered an accomplice, because consent while in a drunken stupor was not
possible.122

Just a week later, another Department of the Supreme Court decided the case
of State v. Nice.123 A 12-year-old
could be an accomplice, the Court said, but it was for the jury to decide.124

The case of State v. Edwards125 was
decided in 1966 by the Court sitting In Department. It is one of those rare
cases of consenting adults being prosecuted for sodomy, although how the
prosecution was initiated is unclear. The unanimous opinion by Justice William
Perry set out some facts of the case.

The evidence discloses that one Mr. Joseph A. DeLorme, who lived at
Central Point, Oregon, met the defendant in February, 1962, at a bar in
Portland frequented by "[G]ay people," "people of
homosexual inclinations." Soon thereafter the defendant accompanied
DeLorme to Central Point where they stayed at the home of DeLormes
parents. DeLorme went to San Francisco to study music and the defendant
accompanied him and they lived together there.

They later went to Reno

where they were married in a civil ceremony, DeLorme using the given
name "Joyce."

They then

returned to Oregon and lived in Medford. DeLorme dressed in womens
clothes and used the name "Mrs. Joyce Allena Edwards." DeLorme
testified defendant had sexual intercourse with him [via] "anal
penetration." A Mr. Miller testified he lived on Roberts Road in
Medford near where DeLorme and defendant lived; that he saw DeLorme
dressed in womens clothes and defendant spoke of DeLorme as his wife.126

Edwards asked the trial court to label DeLormes mother as an accomplice
to sodomy. The trial court had refused to do so, and the Supreme Court upheld
that ruling.127 Presumably, DeLormes mother
knew about the relationship and was supportive. The most logical inference for
the initiation of the prosecution is the neighbor, Mr. Miller, who must have
reported the couple to police. That inference is supported by the briefs
submitted to the Oregon Supreme Court. Miller lived next door to DeLorme and
Edwards, had seen DeLorme dressed as a woman, he seeing that it was a man
dressed as a woman, and Edwards had introduced DeLorme to Miller as Edwardss
"wife."128

A case of a prisoner caught in an act of sodomy and who acted defiantly
toward the state was the subject of the 1969 case of State v. Miller.129
Andrew Miller was displeased with his counsel and began acting part of the
time as his own attorney. Judge Virgil Langtry of the Oregon Court of Appeals
noted that Miller

was a difficult person for an attorney or a court to deal with [sic].
He constantly demanded concessions to which he was not entitled. For
example, he repeatedly demanded subpoenas for the whole Grand Jury of
Multnomah County [Portland] to testify to things they had observed in the
county jail which were irrelevant to his guilt or innocence of the charge
in the indictment. He insisted upon handling part of the examination of
witnesses and arguing the case to the jury. The judge and defendants
court-appointed counsel displayed commendable patience under the
circumstances.130

The prosecutor, overzealous to prejudice the jury against homosexuality, at
one point in his closing arguments to the jury

referred to newspaper stories, not in evidence, regarding jail
conditions. He was immediately interrupted and corrected by the court, who
said "What they read in the newspaper is not in evidence in this
case."131

The prosecutor then said to the judge, "There is only one way to stop
it [sodomy] and that is to prosecute those who are believed to have been
involved in it. Mr. Miller was caught redhanded and he has been
prosecuted. That is pure and simple." [Emphasis added]. The defense then
moved for a mistrial, which was denied.132
Goodwin said that Miller was out of luck on that point, because he himself had
made references to irrelevant newspaper stories, and he "cannot complain
if the prosecutor answers him."133

A victory occurred in Nealy v. Cupp,134
in 1970. The Oregon Court of Appeals unanimously affirmed a trial courts
decision to vacate Nealys guilty plea to a sodomy charge. At the time of
his arraignment, Nealy was informed that the maximum penalty for sodomy in
Oregon was 15 years. Despite that, he was ordered to be examined under the
psychopathic offender law and ended up with a life sentence under the
indeterminate sentencing law.135 Judge Virgil
Langtry noted that the state argued that Nealy had not been prejudiced by its
actions. In one sentence, he powerfully answered the state: "A defendant
is prejudiced when he is told that the maximum penalty possible is fifteen
years and he is then sentenced to life imprisonment."136

The Oregon Court of Appeals decided the case of State v. Bostrom137
in 1970 in which an insanity defense was rejected by the trial court. The
Court of Appeals upheld this ruling.

In 1970, in Jellum v. Cupp,138 the
Oregon Court of Appeals stretched the broad sodomy law even farther by holding
that it outlawed urinating on another person.139

At this time, the Criminal Law Revision Commission was considering a
proposed new code for Oregon. The first draft of a proposed new sex offenses
section made no mention of sodomy.140 One of
the principles guiding the commission was a belief that "any sexual
conduct engaged in between consenting adults, whether of a heterosexual or
homosexual nature" was not to be outlawed. The commentary on sodomy said
that "[d]eviate sexuality has been regarded with intense aversion in
almost all cultures and ages and has been the subject of severe punishment and
condemnation." Nevertheless, it was unwise to prescribe criminal
penalties for homosexual conduct, which the commission believed was
"symptomatic of pathological disorders stemming from a failure to achieve
mature psychic development[.]"141 This
provision received little opposition. Only one citizen, Charles White from the
small town of Bonanza, appeared to testify against it. He said that
"Oregon should not become a playground for these kinds of people."142

One other provision, however, generated more opposition. In order to
prevent public "nuisance" solicitation by people now to be liberated
in their chosen sex acts in private, a "lewd solicitation" section
was proposed.143 Research Counsel Roger
Wallingford, answering criticism of the proposal, said it was "not
intended to reach purely private conversations between persons having an
established intimacy," although he admitted that the provision, as
worded, could be used against private solicitations.144
Representative Harl Haas objected that the proposal would punish conduct that
some found objectionable, not necessarily harmful.145
Chair Wallace Carson, a state representative, believed it was difficult to
draw a line between "public" and "private" solicitation,
but there was "real danger" in "allowing open solicitation for
this type of activity in public places."146
Wallingford then noted that practically the only way the proposal could be
enforced was "by undercover vice squad work."147
Despite Haass and Wallingfords comments, the proposal was adopted
unanimously by the subcommittee. When the proposal came before the entire
commission,148 more concerns were expressed.
Attorney General Lee Johnson complained that the proposed law was "a
little hard on two men who knew each other." He said that "there was
police harassment in this area[.]" He moved that it be amended to exclude
"purely private conversations." His motion lost on an 8-1 vote.149
The committees summary was that it accepted "the premise that open and
aggressive solicitation by homosexuals may be grossly offensive to other
persons availing themselves of public facilities[.]"150

In 1971, the Oregon legislature passed a comprehensive criminal code
revision151 that repealed the consensual
sodomy law152 and established an age of
consent of 18.153 However, the solicitation
section also was enacted. It prohibited "accosting for deviate
purposes," with a penalty of up to 30 days in jail and/or a $500 fine.154
It was worded

A person commits the crime of accosting for deviate purposes if while
in a public place he invites or requests another person to engage in
deviate sexual intercourse.

A 1972 law review article155 gave
background into the legislative process for enactment of the new code. One
study showed that the consenting adult laws were not enforced in the state,
with the exception of "sodomy between persons not married to each other
and of homosexual conduct."156 The author
was critical of the fact that the new code raised the age of consent from 16
to 18, especially since the reason for the action "is not at all
clear."157 More information was given
about the testimony of the above referenced citizen Charles White. He opposed
the new code, especially repeal of "those sections having to do with
homosexuality," that he felt should be strengthened (apparently a
15-year sentence for private, consensual conduct was insufficient).158

A later attempt to reduce the sentences of those in prison for sodomy at
the time of the laws enactment failed of passage.159

The accosting law was ruled unconstitutional in 1981 in the case of State
v. Tusek.160 The unanimous decision of the
Oregon Court of Appeals was that the law criminalized speech, specifically a
request to engage in legal activity.161 The
Oregon legislature repealed the now useless provision in 1983.162

In 1981, in State v. Holt,163 the
Oregon Supreme Court unanimously upheld the conviction for public indecency of
a man for masturbating in a restroom while looking for a sexual partner.164

II. Sterilization

Through the end of 1948, 1,821 sterilizations had been performed in Oregon,
including 106 on persons neither insane nor mentally retarded (30 males and 76
females).165 The report made no suggestion as
to how many of these were "moral degenerates" or "sexual
perverts."

In 1959, Attorney General Robert Thornton issued an opinion166
that attempted to define several of the provisions of the sterilization law.
One of them was "moral degenerates." After reviewing a number of
medical texts and noting that he had been unable to locate a single reported
court decision with such a definition, Thornton concluded that the term could
not be defined with any precision. Therefore, he believed, the definition was
the Board of Eugenicss to make.167

A report from 1960 showed that the number of sterilizations in Oregon had
grown to 2,293 (1,416 women and 877 men). The law could be used "for
persons convicted of certain sex crimes." Allegedly, no "moral
degenerate" or "sex pervert" had been recommended for
sterilization in the state since 1953.168

In 1961, Thornton issued another opinion169
on the constitutionality of the sterilization law. He noted that the law had
not been challenged since its 1923 adoption and that each provision of the
Oregon law had been sustained in a court challenge in another state having a
similar provision.170 Relying heavily on case
law from other states, Thornton concluded that the law was constitutional.171

Amazingly, a 1963 report (obviously written by someone who didnt read
Oregons law before writing the article) claimed that no legislation

has been considered or proposed...which would specifically establish
sterilization as a medical weapon to combat the offenses by moral
degenerates or sexual perverts.172

In 1965, the sterilization law was changed greatly.173
The section permitting sterilization of "sexual perverts and moral
degenerates" was repealed,174 and the law
was made applicable only to the mentally ill and the mentally retarded.

Period Summary: The first Kinsey report was received slowly in
Oregon. Sterilizations of "sex perverts" continued through the
year 1953, although authorization for their sterilization lasted another
dozen years. Courts expanded the reach of the very broad Oregon sodomy law
by determining that both cunnilingus and urination on another person
constituted violations of it. A Gay couple was convicted of sodomy, and
their conviction sustained, based on the complaint of a neighbor that they
were a homosexual couple. The Gay rights movement that burgeoned with the
late 1960s hit Oregon earlier and had a broader impact on the state than
most other places. The courts acted more slowly than the legislature,
continuing to hand down restrictive decisions on sexual freedom, until
more progressive judges were appointed by Oregons string of culturally
liberal Governors, both Democrats and Republicans. The sodomy law was
repealed in 1971, with only three other states preceding it. The civil
libertarian nature of the state also reasserted itself with a number of
court decisions after the sodomy law repeal. The states law against
"accosting for deviate purposes" was ruled unconstitutional on
broad free speech grounds.

The Post-Hardwick Period, 1986-Present

The Oregon Supreme Court decided in the 1987 case of State v. Hansen175
that the age of consent in the state was not to be calculated according to the
common law, which has one change to the next year of age on the eve of ones
birthday. (The case concerned a female teacher who had sexual relations with a
female student the day before the students 16th birthday.)

The Oregon Court of Appeals decided in the 1988 case of State v. Culmsee176
that a parked car in a business driveway some eight feet from a public
sidewalk was not a "public place" for purposes of the public
indecency law.177

In a pair of 1988 cases, the Oregon Court of Appeals continued a great
expansion of privacy rights in Oregon, rights that went well beyond those
defined in other states. In the first, State v. Casconi,178
a unanimous panel overturned the public indecency conviction of a man who was
filmed masturbating in a restroom. The toilet stalls had no doors, but could
not be seen from the entranceway to the restroom. Casconi was captured on film
walking into the common area, masturbating there. Chief Judge George Joseph
found that the police had no interest in filming Casconis action and
returned his case for retrial with the film evidence suppressed.179

On the same day, another panel decided State v. Owczarzak.180
By a vote of 2-1, the Court all but obliterated operation of the states
public indecency law in restrooms. Owczarzak was observed leaving a doorless
stall with his pants down and standing in front of another stall, masturbating
in front of another man. Judge Edward Warren found that the state had no
legitimate interest in his conduct. A

restroom is a place that, by its very nature, excludes unlimited
observation. A person in a public restroom anticipates that another person
might enter and see what is going on. What a person does not anticipate is
that his activity will be seen by concealed officers or recorded by
concealed cameras. That police surveillance, which allows no ready means
for the person to determine that he is being watched, significantly
impairs the peoples freedom from scrutiny.181

An attempt to get a broadly worded privacy amendment to the state
constitution was made in 1991. The language was certified,182
but it never made it onto the ballot.

In 1992, deciding City of Portland v. Jackson,183
the Oregon Court of Appeals moved the state one step closer to absolute sexual
freedom. Sitting en banc, the Court voted 6-4 to interpret the states
public indecency law literally and invalidate a Portland ordinance. The law
prohibited exposing ones genitals "with the intent of arousing the
sexual desire of the person or another person." A Portland city ordinance
had, more broadly, banned exposure of ones genitalia in "a public
place or place visible from a public place" to "persons of the
opposite sex." The Court found first that state criminal laws generally
preempted city criminal laws, citing the Oregon Constitution.184
Second, it noted that the state law required proof of intent to arouse sexual
gratification and the Oregon legislature had, in debating the 1971 criminal
code revision, defeated a proposal to eliminate that provision.185

With Oregons high age of consent (18), any sexual activity with a minor
can get the other partner into trouble with the law. Such a case was State
v. Fennern186 from 1995. A panel of the
Oregon Court of Appeals unanimously sustained the third-degree sodomy
conviction of a man for sexual activity with a male, who had to be at least 16
for the charge to be third-degree sodomy. The nature of the sexual activity is
not mentioned in the opinion, but the Court upheld an enhanced sentence for
Fennern because his teenage partner said "he views everyone he now meets
as [G]ay or [L]esbian." The Court found the trial courts inference of
harm from this statement as sufficient justification for the enhanced
sentence.187

On a more liberal note, a judge invalidated a city ordinance banning adult
bookstore viewing booths in 1995. Although Beavertons ordinance was found
not to be directed at free speech, Judge Donald Letourneau found that state
case law required councils enacting such legislation to act on "current,
local examples of social harm" presented by the booths.188

Period Summary: Oregon is far ahead of most states with respect
to sexual freedom. Two different courts issued decisions in restroom sex
cases that virtually eliminated use of public indecency laws in public
restrooms. The states law against public indecency also was limited in
cases of public nudity. Now, in order to prosecute, the state is required
to prove that the person appeared nude in public specifically for purposes
of sexual arousal. Oregon is back to its libertarian beginnings following
a harsh interlude of Victorian moralizing that followed the national
trend.

8 Acts of the Legislative Assembly of
the Territory of Oregon, Passed at Their Sessions, Begun and Held at
Oregon City, in July, 1849, and May, 1850, (Oregon City:Robert
Moore, 1850). Crimes and Punishments, pages 89-113.

9 The Statutes of Oregon. Enacted,
and Continued in Force, by the Legislative Assembly, at the Fifth and
Sixth Regular Sessions thereof, (Oregon [City?]:Asahel Bush, 1855),
page 206, "An Act to Define Crimes and Misdemeanors, and Regulate
Criminal Proceedings," enacted Dec. 22, 1853.

36 Id. McNary had been appointed
to one of the new seats on the Supreme Court and, when he ran in 1914
for a full term, Oregon voters defeated him by a single vote statewide,
prompting a long and bitter dispute with the man who defeated him. (See The
Oregonian, Sep. 2, 1914, page 12). He later was a U.S. Senator from
Oregon and was the Republican nominee for Vice President with Wendell
Willkie in 1940.

50 The Patriarch, Apr. 6,
1907, 2:2. A history of all the Oregon bills from 1907 to 1921 is in
Owens-Adair, pages 55-82. Owens-Adair graduated from medical school
without having so much as an elementary school education and fought just
as hard for recognition of the sterilization bills as "her"
bills as she did for enactment of the bills into law. Owens-Adair lived
until 1926 and saw the spread of sterilization laws throughout the
United States. Unfortunately, she did not live to learn of the Nazi
abuse of these laws.

56 Pamphlet Containing Measures to
be Submitted to Voters of Oregon November 4, 1913, published by
the Oregon Secretary of State, pages 13-14.

57 The public library in Portland has
no information on the League. The Oregon Journal editorialized
about the outcome, lamenting the loss of the measure and lauding the New
Jersey sterilization law (which would be struck down by that states
Supreme Court on sweeping constitutional grounds just 11 days later).
See the issue of Nov. 7, 1913, 8:3. A letter to the editor attacking the
editorial appeared Nov. 23, 1913, II:5:4. Sterilization was considered a
"liberal" response to a problem (see the editorial mentioned
in note 57). One of the four counties carried by the measure was Lane,
home of Eugene and the University of Oregon. Lane County, then the
second-largest in population in the state, gave the issue a hefty 58%
support. The measure won a full 67% in Eugene, carrying every precinct. Eugene
Daily Guard, Nov. 5, 1913, 1:3. Benton County, home of
Corvallis and Oregon State University, gave the issue 49.7% of its vote.
Portlands Multnomah County, where the 1912 sex scandal erupted that
led to passage of the sterilization law, defeated the proposal by a
larger-than-average 58%-42% margin. Abstract of votes provided by the
Oregon Secretary of States Office. Turnout in Multnomah County was
only 30%, showing that there was little voter interest in this measure. Portland
Evening Telegram, Nov. 6, 1913, 2:2.

58 General Laws of Oregon 1917,
page 518, ch. 279, enacted Feb. 19, 1917. The Portland newspapers
referred to the bitter debate in the legislature over this bill. In the
Oregon Senate, one senator asked his colleagues to remember the popular
vote in 1913 against sterilization, but the others claimed that the
public, having become more sophisticated on the issue, now was
supportive. See The Oregonian, Jan. 30, 1917, 9:1. The same
paper editorialized that some people felt that "perverts and
defectives ought to be let alone," but that was
"reactionary." Id. Feb. 2, 1917, 12:3.

63 Correspondence from
"Warden" to Dr. Frederick D. Stricker, Secretary, Oregon State
Board of Eugenics, Dec. 18, 1924. In collection of the records of
the Oregon Board of Eugenics, Oregon State Archives, Salem.

73 This law was enacted at a session of
the legislature dominated by the Ku Klux Klan. Also enacted at this
session were an alien land law aimed at the Chinese. During this year,
the state defended in a court challenge its popularly initiated law that
prohibited Catholic schools. See Gordon B. Dodds, Oregon: A
Bicentennial History, (New York:W.W. Norton & Co., 1977), pages
188-190 and 197-199. Amazingly, the KKK-supported Speaker of the Oregon
House of Representatives was named Kaspar K. Kubli.

74 Biennial Report and Opinions of
the Attorney General of the State of Oregon 1922-1924, page 555,
issued Jan. 21, 1924.

80 R.E.L. Steiner, "Eugenics in
Oregon," Northwest Medicine, 26:594-597, at 595 (Dec. 1927).
This article erroneously refers to the number of sterilizations under
the law of 1917. Since that law was found unconstitutional, the number
had to be under the law of 1923. Besides, figures show 68 men sterilized
through 1921, whereas Steiner cites a total of 62, obviously in four
years under the new law.

93 "Eugenics Cases," an
otherwise unidentified sheet among the records of the Oregon Board of
Eugenics at the Oregon State Archives, Salem. "Castration" was
the term of choice for removing testicles for about 20 years. Beginning
about 1938, the term "orchidectomy," meaning the same thing,
was substituted in the records. For women, "sterilization" was
the term of choice for 20 years, then "salpingectomy" was
substituted around 1938, although they are synonymous.

94 Biennial Report and Opinions of
the Attorney General of the State of Oregon 1946-1948, page 42,
issued Sep. 4, 1946.

116 Id. at 820. Cassons
arrest on this charge is noted in the Oregon Journal,
Jan. 19, 1956, 10:3. A review of the briefs filed with the Oregon
Supreme Court shows that the teenage male involved in this case not only
made no objection to the sex, but eagerly sought more. See 1591 Oregon
Briefs 421, especially page 36.

117 366 P.2d 323, decided Nov. 22,
1961. This case was handed down only 19 days after it was argued.

127 Id. Discussion of DeLormes
mothers knowledge of and acquiescence in the relationship is found in
the briefs submitted to the Oregon Supreme Court. See 1739 Oregon Briefs
440, pages 13-14, 35, and 53-54. The state complained that Mrs. DeLorme
didnt turn her son into the police upon learning of his relationship
with Edwards, as if a parent ordinarily would be expected to do this to
a child.

128 1739 Oregon Briefs 440, pages
14-15 and 55-56. Sadly, the briefs also tell that Edwards was "not
a homosexual," that he had an extensive criminal record for theft
offenses, and that he entered into the relationship with DeLorme only
for financial gain. DeLorme gave Edwards some $15,000 during the course
of their less than 1½-year relationship. 1739 Oregon Briefs 440, pages
13, 15, and 16.

133 Id. at 876-877. DeLorme was
released from prison in early 1965, a full year before Edwardss case
was decided by the Oregon Supreme Court. Edwards was not released until
late 1973, almost nine years after DeLorme. DeLorme died in 1972.
(Correspondence from Sharon L. Christensen, Custodian of Records, Oregon
Department of Corrections, n.d., postmarked Feb. 21, 1997).